JOHN SELDEN OF THE JUDICATURE IN Parliaments A Posthumous TREATISE WHEREIN The Controversies and Precedents belonging to that Title are Methodically handled LONDON Printed for Joseph Lawson Bookseller in the Bail of Lincoln And Sold by the Booksellers in London A Scheme of the Method and Contents CHAP. I. PEers to render Judgment of Peers pag. 1 Qu. Whether the Spiritual Lords de jure are triable by their Peers p. 4 Touching the Nature of the Offences triable in this High Court 6 CHAP. II. In what Cases Judicature belongs to the Parliament 8 Of Judgment on Delinquents 10 § I. 1. Their Accusation by the Commons 11 Four manner of Accusations in Parl. ib. Precedents of their Complaints 1. By Petition 12 2. By Demand 16 3. By Impeachment 17 § II. 2. Accusation ex parte Domini Regis p. 33 Some Delinquents accused in Parliament upon Common Fame without proof of Witnesses 37 The Judgment Repealed 38 No Peer can be Indicted in Parliament 39 He may be Indicted out of Parliament and proceeded against in the next Parliament upon the said Indictment 40 § III. Qu. Whether S. R. Ferrars 4 R. 2. was Legally brought to his Answer in Parliam by Commandment of the D. of L. 44. Whether he being no Peer nor Baron could be Legally Arraigned in Parliament by Information ex parte Regis Ib. Question Resolved 45 How the Earl of Bristol's Cause could be heard in the House of Lords notwithstanding 35 H. 8. 46 The Usage in such Cases and Precedents 48 Whether in a Trial before Lords and Commons the Commons are to Sit with their Speaker 54 § IV. Accusation ex Mandato Domini Regis ib. The Earl of Northumberland's Case 5 H. 4. ib. The Lords Impeach not any to themselves because they are Judges 63 The Manner of proceeding against a Delinquent that absents ib. § V. Of Accusation by Complaint of private persons 66 The Fishmongers Complaint against the Lord Chancellor 7 R. 2. 72 The Lord Chancellor his Defence 74 Of the Complaint against Bishop Williams Lord Keeper 80 The History of the Appeal 11 R. 2. 81 The Lords proceed not against a Commoner but upon the Complaint of the House of Commons 84 Appeals abolished 1 H 4. c. 14. 87. CHAP. III. The Parties Answer 89 The Party accused to be brought to his Answer 95 An Answer required from the D. of Gloucester to certain Accusations though he were dead and Judgment given upon him 91 Another Delinquent found guilty long after he was dead 95 In what Cases the Party is to answer as a Freeman in what as a Prisoner 97 Things to be considered in the Answer 97 Variation from the Ancient Course 100 Touching Council allowed him 102 § 2. When Council shall be allowed him and when not ib. In Misdemeanors the Party may have Council to Answer 103 But the Earl of Middlesex was denied it 21 Jac. 103 The Parliament hath compelled a present Answer in Misdemeanors and without Council 107 The Mayor c. accused by the Scholars of Cambridge ib. § 3. The Replication 109 Where the Articles against the Delinquent are ex parte Regis there the Commons do not reply nor demand Judgment ib. Impeachment of the Lord Latimer 111 William Ellis Impeached 114 Lord Nevile Impeached by the Commons ib. CHAP. IV. The Proof By Examination of Witnesses 120 Witnesses produced by the Commons ib. A Committee for Trial of Alice Pierce 123 A Jurie in Parliament for Misdemeanors 125 G. D. of Clarence Arraigned 127 CHAP. V. The Judgment 132 § 1. It belongeth to the Lords only 133 The Commons have no Right to it ib. § 2. In what Cases the King's Assent is necessarily required 136 Necessary in Capital Judgment 143 In Judgment on Misdemeanors the King's Assent is not required 144 § 3. The King's Presence in Parliament 39 § 4. The Presence of the Lords Spir. ib. In Cases of Misdemeanor aff ib. Capital neg ib. The Protestation of the Bishops for ever 150 Whether they can be present not Vote 152 A Bishop being Lord Chancellor was present at the giving Sentence in Case of Treason 156 § 5. Of the Presence of the Commons in Cases Capital 158 The Precedents 149 Their Presence not necessary unless when they impeach 160 Whether they Sit if they are present 161 Of the Presence of the Judges 162 § 6. The manner how the Lords resolve on their Judgment 167 Whether it be ultra Legem 168 Judgments for satisfaction 173 References to the Common Law 175 By whom to be demanded 176 By whom to be rendred ib. CHAP. VI. The Precedents for Life and Death 178 CHAP. VII The Execution of the Judgment 182 In Capital Offences In Misdemeanors CHAP. VIII The Recovery of Damages or Restitution to the Party aggrieved 187. JUDICATURE IN Parliament CHAP. I. Peers to render Judgment on Peers THE Execution of all our Laws hath been long since distributed by Parliament out of inferiour Courts in such sort as the Subjects were directed where to complain and the Justice how to redress wrongs and punish offences And this may be the reason of the Judges opinion in Thorps Case 31. Hen. 6. Num. 37. That Actions at Common-Law are not determined in this High Court of Parliament yet complaints have ever been received in Parliaments as well of private wrongs as publick offences And according to the quality of the Person and nature of the offence they have been retained or referred to the Common-Law Touching the quality of the Person the Lords of the Parliament did not anciently try any Offenders how great soever the offence was unless he were their Peer As by that of 4 E. 3. N. 2. where when the King commanded the Lords to give Judgment on Simon de Bereford and divers others also who were not their Peers for the murther of E. 2. and the destruction of the Earl of Kent Son of E. the first A proviso and agreement was made and recorded in these words Et est assensu accord c. And it is assented and accorded by our Lord the King and all the Grandees in full Parliament That albeit the Peers as Judges of the Parliament have took upon them and rendred the said Judgment c. That yet the said Peers who now are or shall be in time to come be not bound or charged to render Judgments upon others than Peers Nor that the Peers of the Land have power to do this but thereof ever to be discharged and acquitted And that the aforesaid Judgment rendred be not drawn to example or consequence in time to come whereby the said Peers shall do contrary to the Laws of the Land if the like Case happen which God forbid 4 E 3. N. 6. This Proviso and agreement was made by the Lords and Commons and it had these respects First to satisfy the Commons that the Lords by these Judgments intended not to alter the course of the Common-Law and therefore they disclaimed that they had power
the Particulars in form of a Charge they were sent to the Lord Chancellor and his answer required to each particular In the same manner in the same Parliament they accused John Bennet Judge of the Prerogative Court of Bribery and Corruption in his Office In the same manner they accused and impeached Lyonel Earl of Middlesex and Lord Treasurer of England of Bribery and Extortion and Impositions on French Wines and Grocery which being reported to the House a Committee was appointed to consider of the Commons complaint and also of a Committee who had reported to the House a great want of Powder in the Stores through the Lord Treasurer's negligence A Committee appointed to consider thereof did after many Examinations taken draw up out of the whole Complaint of the Commons a Charge against him as also out of the Report of the Committee for Munition touching the want of Powder and of a Complaint made to the House by Sir Thomas Dallison and of some Misdemeanors whereof they are informed in the great Wardrobe and Court of Wards Which Charge the House sent unto the Treasurer and required his Answer 21 Jac. In eodem Parl. 21 Jac. The Commons at a Conference accused and impeached by word of Mouth the Bishop of Norwich of some Misdemeanors which being reported to the House the said Bishop made a present Answer thereunto as it was In the Parliament 1 Car. 1. Febr. 6. The Commons at a Conference accused and impeached George Duke of Buckingham of many Misdemeanors and delivered their Declaration in Writing that the said Duke might be put to his Answer § 2. The second manner of Accusation is Ex parte Domini Regis which is threefold The two first are immediately from the King and the third from the Commandment of the Lords by a formal Information exhibited in Parliament by the King's Attorney or Council learned as was that of E. 3. against Roger Mortimer Earl of March and divers others and 4 R. 2. against Sir Ralph Ferrers K t and 1 Car. 1. against the Earl of Bristol By the King's Commandment either upon the Petition of the Delinquent and upon the return and view of any the Proceedings taken elsewhere as against the Earl of Northumberland and Lord Bardolph upon former Proceedings against them in the Court of Chancery And 2 H. 6. upon request of the Commons against Sir John Mortimer Knight indicted in London In these Cases no Articles are exhibited Ex parte Domini Regis as in the former By Articles exhibited Ex parte Domini Regis Ex parte Dominorum against such as the Complaint is made upon in general by the Commons prout 1 R. 2. against Gomeniz Weston and Alice Peirce 7 R. 2. against the Bishop of Norwich and divers others Which Articles though drawn and exhibited Per mandatum Dominorum yet were the Parties charged therewith Ex parte Domini Regis Of Accusation by Information Ex parte Domini Regis In Rot. claus 4 E. 3. There is a Proclamation of the death of Edmond Earl of Kent where it is said certain Letters of his containing Treason were shewed to the King wherefore he was Arrested and freely acknowledged the same before the Earls Barons and other Grandees and Nobles of the Realm in the Parliament at Winchester 4 E. 3. Here appears plainly that Articles of Treason are exhibited in Parliament against the Earl of Kent In the next Parliament in the same year Edmond Son and Heir of the said Edmond exhibited his Petition praying the King that the Record and Process whereupon the said Earl was put to death might be brought before him in Parliament and if Errors be found that Right be done Numb 11. The which being read before the King Prelates Earls Barons and other Grandees in the said Parliament the King by his Royal Power and Dignity by assent in Parlialiament repealed the said Judgment Numb 12. Note That in this Repeal no Error was alledged nor any Exceptions taken for this that the Lords proceeded upon the Articles only which were objected against him the said Earl This is out of the Close Roll. The first Precedents recorded in our Parliament Rolls of Accusations in this kind are these of 4 E. 3. in the Parliament at Westminster which are added at large amongst divers others at the end of this Discourse the effect whereof doth follow viz. These are the Treasons Felonies and ill Deeds done to our Lord the King and to his People by Roger de Mortimer and others of his Covin reciting them all and concludeth thus Whereas our Lord the King doth charge you the Earls Barons and other Peers of this Realm that for as much as these things touch him principally and you and all the People of this Realm That you do unto the said Roger right and lawful Judgment as is fit for such an one to have who is very guilty of all the crimes above written for that he believed the said things are notorious and known for truth unto you and to all the People of the Realm Numb 1. The followeth the Judgment against him Item In the said manner our Lord the King charged the said Earls Barons and Peeres to give right and lawful Judgment on Simon de Bereford Knight who was ayding and counselling unto the said Roger de Mortimer in all treasons and ill deeds for which the said Roger was so awarded and done to death as the thing that is known and notorious to the said Peers as the King believeth Then followeth the Judgment against him also Then followeth the Judgment against John Matrevers Thomas de Gurney and William de Ogle Numb 5. But no particular accusations are recorded against any of them unless they were comprised in those general words of that against Mortimer viz. And other of his Coyn. For some of the same Crimes are mentioned in the Judgments yet no doubt but the Kings Attourny did exhibit Articles against every of them upon which the Lords proceeded to Judgment Here I do ingenuously confess my own Error when I said that this Judgment against Roger de Mortimer was afterwards reversed for that he was put to death without any Accusation which I conceived to be so upon first view of the Repeal thereof Anno 21. E. 3. Numb 10. Where the Petitioners Roger de Mortimer the Grandchild assigneth for that the said Earl was put to death and he disinhereted Sans Accusament Et sans estre masone in Judgment ou en Respons By which words sans accusament I gave you to understand that the Articles were no accusation whereas now upon better Consideration I do find that these words do intend no accusation by witnesses or otherwise to prove the said Articles objected against him For these Articles are a legal accusation in Parliment and frequently used as appears by many Precedents of the like nature But there was no other proof offered by the Lords to prove the same then that the King believeth them
against Henry late Earl of Northumberland and Tho. Bardolph late Lord Baron for certain ill deeds which they had lately committed contrary to their Allegiance At their meeting the Constable of England shewed them the Process made in the Court of Chivalry against Henry de Peircy upon the Articles of Treason committed by him and others of his Covyn In which Articles are named the Arch-Bishop of York Tho. Newberry Earl Marshal the said Earl of Northumberland the said Lord Bardolph and many others and their several Treasons are therein contained The Lords having advised therein and considered the proofs delivered their opinion to the King touching the said Earl of Northumberland and the said Lord Bardolph only and proceeded to Judgment against them Then the King caused to be demanded of the Lords Temporal Peers of the Realm what they would say touching the Act of the said late Arch-Bishop of York and of the said Earl Marshal who lately with a great multitude of people were armed and trained in the field within the Realm of England with Banners displayed c. Unto which demand the said Lords Temporal said That according to the Information to them given by the said Constable It seemeth unto them to be Treason yet notwithstanding the Lords desired that with good deliberation when they next returned to the Parliament they might speak thereof unto our Lord the King as no error might be found in their doings in time to come This was done on that day the Parliament was adjorned Here the Lords had no other Accusation against those two Peers but the Kings commandment upon view of former Process against them in the Court of Chivalry And the Lords declared their opinion touching the Archbishop of York and the Earl Marshal though their Treasons were contained in the same Process also least Error might be found in their doings hereafter But whether they thought their Error to be that the King had not commanded them first to advise thereon touching the said Archbishop and the Earl Marshal as he had done touching the others Let the Reader Judge For my part I think that would have been error Could the Lords proceed upon Process elsewhere unless the King commands them 2 H. 6. The Judgment against John Mortimer is drawn up very briefly by John Hales one of the Justices of the Kings Bench wherein he first shews that the said Sir John Mortimer was Indicted in London sitting the Parliament before the Lord Mayor of London and other Commissioners appointed by the King For that the said Sir John being committed to the Tower for suspition of Treason corrupted his keeper and broke Prison That the said Indictment was returned into Chancery Ex mandato Dom. Regis and by the Chancery brought into the Parliament before the Duke of Gloucester the Kings Protector and the Lords Temporal the King being then an Infant And the Protector being Authorized by Commission to hold the Parliament de Precepto Dom. Regis That the said Sir John Mortymer by Vertue of the Writs was brought before the said Duke and Lords and Commons That the said Commons affirmed the said Indictment to be true and desired Judgment against him as convict of Treason and Felony And lastly That he was thereupon adjudged In this is set down all the essential parts of the Lords proceedings against Mortymer The Ceremonious or formal parts thereof are omitted as who complained of or accused Mortymer to the Parliament The King or the Commons did not for then there needed no Indictment And therefore it must move for the King either before the Indictment or rather upon the Return thereof unto the House For had the Accusation been before the Indictment it had been a shorter way to Arraign him also before the Commissioners in London he being no Member nor Peer of Parliament then to return the Indictment into the Chancery and then be brought into the Parliament Here is also omitted the Conference before hand between the Lords and Commons touching this matter For it is very unlikely that the Lords did suddainly send for the Commons and then abruptly read the Information before them and they as suddainly affirm the same all these are necessarily understood That the Commons affirmed the Indictment e. It appears that the Lords cannot of themselves Judge a Common Person for an Offence for he is no Peer according to that of 4 E. 3. Numb 26. The manner of Accusation by Information Ex parte Dom. Regis is when the Commons as any other private Person accuse any man unto the Lords in general but do not declare the Offences in particular other then by the Commandment of the King Articles are drawn up against the Delinquent Ex parte Dom. Regis The Precedents are these 2 R. 2. The Constable of the Tower was commanded to bring Gomeniz and Weston whose Offences were complained of in general by the Commons that they named before the Lords in Parliament to Answer to the Articles objected against them on the behalf of the King and they were severally arrained at the Commandment of the Lords c. Eodem anno Alice Pierce being complained of by the Commons was accused and commanded to come before the Lords in Parliament to Answer to certain things objected against her on the Kings behalf And here upon Sir Richard le Scroope Chief Steward of the Kings House by Comandment of the Lords rehersed in Parliment in the presence of the said Alice a certain Ordinance c. Made in the Parliament of 50 E. 3. against her And this Rehersal being made the said Steward surmised unto the said Alice That it seemed to the Lords of the Parliament that she had incurred the pain comprised in the said Ordinance in certain points and especially in two That is to say c. By these two Precedents it appears plain enough that the Lords commanded the Articles to be drawn and exhibited though ex parte Dom. Regis for all these are said to be done by their Commandment And the practise at this day is that out of the Complaints of the Commons as of Mompesson The Lord Chancellor and the Lord Tresurer and a Committee of the Lords did draw up the Charges But they wanted the words Ex parte Dom. Regis The reason why in this Cause the Articles are Ex parte Dom. Regis seemed to be this The Commons complain but impeach not Notwithstanding the Impeachment the Lords cannot proceed neither can they Impeach any to themselves So it rests that the party is to be Impeached at the Kings Suit It may be lawful for me to examine the proceedings of the Lords in the Complaint against Mompesson and to compare them with ancient Proceedings in like Cases And they will appear to differ much And touching Mompesson the Commons did not only complain but accuse him He fled in his absence they ought to have proceeded to Judgment against him before Proclamation first made for him to appear before the
Conferences wherein his Majesty by Testimony becometh a Witness and in case the Earl should be convicted his Commission cometh to the Crown c. he desired their Lordships to put his Majesty in mind thereof for the declining his Accusation and Testimony 9 Maij These Questions were proposed to the Judges 1. Whether in Treason or Felony the King's Testimony is to be admitted or not 2. Whether Words spoken to the Prince who afterwards is King make any alteration in the Case And the Judges were to deliver their Opinion therein on the 13th Day of the said Month of May. And on Saturday Morning being the said 13th Day the Judges were desired to deliver their Opinions The Lord Chief Justice said They appointed to meet and to consider thereof and Mr. Attorney desired to know the time of their Meeting and before that time he brought them a Message from the King viz. That his Majesty was so sensible of his Honour that he would not suffer the Right of his Crown which may justly be preserved to be dampnified in his time That they might deliver their opinion in any particular Questions concerning the Earl of Bristol but not in the general Questions whereof his Majesty could not discern the consequence which might happen to rhe prejudice of the Crown Every particular Case varying according to the circumstances 4 E. 3. The Articles were read against Roger Mortimer and it followeth thus Wherefore our Lord the King doth charge our Earls and Barons Peers of this Realm That forasmuch as these touch him principally and all the People of this Realm That you do unto the said Roger Mortimer right and lawful Judgment such as appertaineth to such an one to have who of all the faults abovesaid is very guilty as he believeth And for that the said things are notorious and known to be true unto you and to all the People of the Realm This was all the Proof produced against Roger Mortimer The Lords hereupon judged him But afterwards Anno 28 E. 3. Numb 10. they reversed it as erroneous so that although the King's Testimony confirmed by the common Fame was 4 E. 3. received against Roger Mortimer yet it was afterwards adjudged Nul Accusament in the 28th of the said King E. 3. In that Parliament of 18 Jac. divers Witnesses were examined in open House in the Causes of Mompesson and the Lord Chancellor upon Interrogatories agreed on beforehand and divers at a Committee And it was resolved That none might be examined upon any thing that might accuse Whereupon the Earl of Southampton one of the said Committee signified That a Scruple did arise Whether Sir Ralph Horsey should be examined what Bribe he gave to the Lord Chancellor and upon the Vote it was agreed he should dissentiente Comite Dorset Eodem Anno The Lords did find that the Testimony of divers of the House of Commons was necessary touching the Complaint against Mompesson and therefore sent a Message to this effect The House of Commons before their Complaint exhibited against the Lord Cobham and Doctor Feild for a Bribe concerning Egerton's Case 18 Jac. examined one Davenport but not upon Oath The Lords when they had examined Davenport found that the Case was not so foul as he related it unto the Commons and therefore sent his Examination again unto them and then punished him for his false Relation CHAP. V. The Judgment FIrst Unto whom the Judgment belongeth and the King's Assent and of the Presence of the Spiritual Lords the Commons and the Judges Secondly The Judgment it self and by whom it was demanded and by whom rendred In making of our Antient Laws the Commons did Petere the Lords Assentire and the King Concludere So in Judgments on Delinquents in Parliament the Commons might accusare petere Judicium the King assentire and the Lords only did judicare §. 1. That the Judgment belongeth only to the Lords appeareth by all the old Records that I have seen prout 4 E. 3. against Mortymer The Earls Barons and Peers did Award and Judge by assent of the King c. 7 H. 4. In the Case of the Earl of Northumberland Protestation was made by the Lords That the Judgment belonged unto them only For the clearing of this Point That the Judgment belongeth to the Lords only vide the Protestation of the Commons 1 H. 7. which excludes the Commons from any Right thereunto viz. On Monday Novemb. 3. The Commons made their Protestation in manner as they did in the beginning of this Parliament and then further declared to the King That no Record in Parliament be made against the Commons That they are or shall be Parties to any Judgment given or hereafter to be given in Parliament Unto which it was then answered by the Archbishop of Canterbury by Command of the King That the Commons are Petitioners and not Demanders and that the King and the Lords have ever had and of Right shall have the Judgment in Parliament in manner as the Commons themselves have declared saving in Statutes to be made and in Grants of Subsidies and the like though to be done for the common profit of the Realm the King will have especially their Advice and Assent And that this Order be held and kept at all times to come This excludes the Commons from all Right to Judgment But whereas it faith the Judgments in Parliament belong only to the King and Lords That is to be understood touching the King's Assent only as apppeareth by the Replication of the Parliament in this Point in 2. H. 5. which was thus In the Parliament at Leicester 2 H. 5. Numb 11. Tho. Earl of Salisbury Petitioneth to reverse a Judgment in Parliament against John Earl of Salisbury his Father in 2 H. 4. and one of the Errors assigned was for that the Judgment was not given by the King but by the Lords Temporal only whereupon the Earls of the Parliament at the King's Commandment gave Copies of the said Judgment of 2 H. 4. and of the said Errors assigned unto the Kings Serjeants at Law then present Ad sequentem solutionem Juris Regni in hac parte avisarentur Super quod Servientes ad Legem crastino die Domino Regi ac Dominis Spiritualibus Temporalibus praedictis hoc in Parliamento petierunt scrutinium pro Domino Rege in hac parte Quibus dictum erat ex parte Domini Regis Quod ipsi procederent ulterius absque aliquo scrutinio habendo quoad declarationem judicium super supradicta c. And afterwards Day was given at the next Parliament which was held at Westminster eodem Anno 2 H. 5. In which Parliament the said Judgment of 2 H. 4. being examined and discussed at full videbatur tam dicto Domino nostro Regi quam etiam Dominis suis antedictis c. quod idem Judicium Declaratio praedicta versus eundem Johannem c. sunt fuerunt bona legalia
Precedents mention the King's Assent in Capital Judgments except that one against Matrevers 4 E. 3. which might be the omission of the Clerks who drew up the Roll for it is said directly afterwards in the said Bill Numb 6. That the Peers gave those Judgments in the presence of our Lord the K. and by his Assent And except that of 1 R. 2. against Weston in the last Day of the Parliament and it was 3. in the Afternoon that Day before the Lords had determined what to do in that Business so that it may be the Lords were prevented of time herein to have which they respited Execution for that the King was not informed of the manner thereof Secondly For that the Lords Appellants 11 R. 2. who had then great Forces about them were so earnest with the King for his Assent to the Judgment against Burley That the Duke of Gloucest told him as appeareth by his own Confession 21 R. 2. That if he would be King he should not intreat for Simon de Burley to save him from Death And in the end when his Majesty would not assent to their Judgment yet they wrought so that Messengers were sent unto him and brought word not before they gave Judgment against Simon and the King's Assent is mentioned in the said Judgment All which the said Lords would not have done had not the King's Assent been necessary And afterwards in the Parliament of 21 R. 2 The Lord Cobham being accused for giving Judgment without the King's Assent answered That the Messenger brought word That his Majesty had assented And yet because he did not gainsay that the King did deny his Assent the Commons immediately demanded Judgment All which seem to imply That the King's Assent is necessary in Judgments upon Capital Offences Touching the Second viz. Judgment against the King 's Will. It is all one with Judgment without the King's Assent Touching the Third viz. In the Absence of the King The Judgments of this kind are good notwithstanding so as the King doth assent as that of Simon de Burley 11 R. 2. Touching the Absence of many of the Peers That is to say of many of them and against their will This cannot invalid their Judgment so as the greater number of the Lords be then present accompting the Proxies of the absent Lords for it is not material whether some Lords do absent themselves or disassent The chiefest Matter is the Assent of the Lords who are present either in Person or by Proxy The others are to Answer for their Absence without a just Cause shewn or a proper Assent § 2. In Judgment on Misdemeanors the King's Assent is not required 50 E. 3. The Lords judged divers Commoners for Misdemeanors and the King's Assent not mentioned as Richard Lyons William Lord Latymer a Privy Councellor John Lord Nevil a Privy Councellor Jo. Peecher and others The King was then sick at his Mannor of Eltham and on the last day of the Parliament the Lords Prelates and Commons came before him there and he heard the Petitioners and their Answers for most part read and also Judgment given on the Privy Councellors and others dont ils se leyron franchement le respons de mesme nostre Seignior le Roy Numb 15. Which shews that the King had not assented to them 7 R. 2. The Bishop of Norwich was accused of Misdemeanors and judged in 10 R. 2. The Lord Chancellor Mich. de la Poole was judged by the Lords for Misdemeanors and Speed fol. saith That the King was much displeased thereat for it appeareth he gave not his consent And it was one of the Questions demanded of Tresilian and others 11 R. 2. Whether the Judgment were erroneous or not and resolved to be erroneous yet it was not objected against any the Lords Appellors that the Judges proceeded without the King's Assent §. 3. The King's Presence in Parliament In 4 E. 3. The King commanded the Lords to do right and lawful Judgment on Mortimer The which Earls Barons and Peers having examined the Articles came again before the King and said c. Ibidem The King commanded them to give Judgment on Simon de Bereford The which Earls Barons and Peers came again before the King and said c. And so the King was present at their Judgment but not at their Consultations 10 R. 2. The King was present when the Commons accused the Lord Chaneellor William de la Poole of Misdemeanors but he was not present at his Trial for he demanded if he ought to answer sans presence de dit Roy being Chancellor and in the end he answered notwithstanding 21 R. 2. In the cruel Parliament of the Lords Appellants the King was present at the Parlies Non constat whether he was present at the Consultation of the Lords 5 H. 4. The King was present when the Earl of Northumberland was to be tried upon his own Petition and so were the Commons And the King delivered the Petition to the Judges for their Opinion but the Lords claimed their Right But this was on the Wednesday and the Friday following the King and Commons met there again and the Chancellor rehearseth First What was done the first Day and the Lords having had competent deliberation on the said Petition and having heard and considered the Statute They adjudged c. It is plain the King was not present at this Consultation of the Lords though at their Judgment 7 H. 4. He commanded the Lords to advise what manner of Process shall be made and what Judgment shall be rendred against Henry de Peircy Earl of Northumberland and a Week after the Lords declared their Opinion to the King And it appeareth in that Roll very clearly that all Evidences and Examinations were shewn and taken by the Lords in the absence of the King and their Advice also agreed on in his Absence but the Judgment reversed in his Presence To conclude The King may be present if he please at the Parties Answer in Capital Causes and at the Judgments given prout c. But he was never present at other times of Proceeding against the Delinquent nor at any Answer for Misdemeanors for ought I have yet seen §. 4. The Presence of the Lords Spiritual In Cases of Misdemeanors the Lords Spiritual have ever been present but never in Offences Capital This is so generally-received of all men that it is not worth the Labour to prove it yet I will vouch the Precedents For it may be out of one or other of them somewhat may occur worthy the Observation In Misdemeanors In 1 R. 2. Alice Peirce was brought before the Prelates and Lords in Parliament to Answer and the Prelates and Lords did ordain 42 E. 3. Numb 20 c. John at Lee was put to Reason before the Prelates Lords Dukes Earls Barons and some of the Commons 7 R. 2. Jo. Cavendish accused the Lord Chancellor of Bribery before the Prelates and Lords in
Parliament Numb 9. Whereupon the Prelates and Clergy being severally examined deputed for them all Tho. de Piercy But in ancient times in libro Mailicess Numb 9. which hath written somewhat largely of this Parliament It is said The Pardon 's granted to the Earls of Arundel were first repealed by the Assent of the Prelates for which he blames them much saying Dederunt ergo locum Praelati Judicio Sanguinis in hoc facto ita quod dubitatur à pluribus si incurrunt irregularitatem pro negotio memorato unde contigit quod propter istud minus peccatum consequentur nam exactum est ab iis vellent nollent ut Laicam Personam constituerent ad Judicium Sanguinis dandum in dicto Parliamento si necesse foret occasio emersisset I have perused all Judgments and Ordinances in Parliament and do not yet find one whereto any Exceptions were taken for the Absence of the Prelates and Clergy I find an Exception to the Judgment of the Exile in 15 E. 2. for that it was made without the Assent of the Prelates who were present and protested in writing against it And one of the Errors whereupon it was repealed is for that it was made without the Assent of them who were Peers of the Realm in Parliament But this Repeal was per duress force c. prout 1 E. 3. c. 2. So as this cannot be alledged for a Legal Precedent 5 H. 4. The Earl of Northumberland came before the King the Lords and Commons in Parliament The Lords made Protestation that the Judgment belonged to them only c. The Petition being read before the King and the said Lords as Peers of the Parliament unto whom such Judgments do of Right belong considering c. adjudged that it was neither Treason nor Felony c. Note That all this Parliament the Bishop of was Chancellor and he as Chancellor delivered the Opinion of the Lords when they had acquitted the said Earl of Treason Whereby it seems that He and the other Bishops were present at the Trial of Life and Death wherefore though the Record doth here say the Lords indefinitely we must understand the Lords Temporal only especially since they claimed the said Judgment to belong to them In 4 E. 3. Judgment was given by the Earls Barons and Peers as Judges in Parliament in point of Treason where the Prelates are not named and therefore understood of the Temporal Lords only This will be explained by the next of 7 H. 4. Rot. Process coram Domino Rege c. The King commanded the Lords Temporal Peers of this Realm to advise what Process to make and what Judgment to render against the Earl of Northumberland and the Lord Bardolph The Lords advised thereupon and reported their Opinions to the King The said Lords Peers of the Realm by Assent of the King Ordain That Proclamation should be made for the said Earl and Lord Bardolph to appear or else to be Convicted by Award of the Peers in Parliament The King did farther demand the Opinion of the said Lords Temporal touching the Archbishop of York unto whom the said Lords Temporal said c. The Commons prayed the King that they might have Cognizance c. Whereupon by Advice of the Lords Temporal the Returns of the former Proclamations were made at the Parliament-door for the said Earl and Lord to appear By Advice of the said Lords Temporal the Returns of the former Proclamations were examined the said Lords Temporal considered of the Errors therein By the said Lords Temporal with the Assent of the King by their Authority New Proclamation is granted the Return whereof is read in full Parliament before the King and the said Lords Temporal Whereupon the said Lords Temporal then being in the said Parliament by Advice and Assent of our Lord the King by their Authority in Parliament Awarded the said c. Convict of Treason Here all was done by the Lords Temporal from the first beginning of the Trial until the Judgment and yet the Judgment is said to be in Full Parliament notwithstanding the Spiritual Lords are not once mentioned nor intended to be present at any time whilst the Matter of Treason was handled §. 5. Touching the Presence of the Commons in Cases Capital I observe the Presence of the Commons to be necessary at the Parties Answer and Judgment in Cases Capital Now one Reason for the King's Assent and the Commons presence in such Judgments may be this Both King and People are to be satisfied for the death of the Subject therefore all Trials for Life and Death are publick in the full Assembly of the Court And how can it be said in Full Parliament when the Commons one of the States are absent For this purpose the Court of Requests called Camera Alba was prepared for such Trials where both Lords and Commons might meet more conveniently yet though the Commons were present at such times they had no Voice there But at their Return to their own Assembly they considered among themselves if the Proceedings were Legal and might come again and shew it and require a Rehearsing of that Cause as they did at the Judgment of the Duke of Clarence 18 E. 3. Nor are the Commons to be present when the Lords do consider of the Delinquent's Answer and the Proofs and do determine of their Judgment The Precedents are these 10 R. 2. Gomeniz and Weston were brought before the Lords and Commons seaux a la blanch Chambre and Answered on Friday 27 Novemb. and there they were delivered to the Constable of the Tower who was commanded to bring them again the next Morning In the mean time the Earls Barons and Baronets assembled and advised from the time that the said Answers were given in Parliament on Friday until part of Saturday to the hour of Three of the things touching the Answer aforesaid and then the Prisoners were brought in to the Parliament 10 R. 2. Rot. de Pardonatione Haxei 7 Febr. Anno praedicto Praedictus Tho. Haxei coram Nobis omnibus Dominis Parliamenti Nostri existentibus in Alba Camera adductus fuit Billa praedicta coram praefato Thoma ibidem per Praeceptum Nostrum lecta fuit Quaesitum fuit per Charissimum Avunculum Nostrum Ducem Aquitain Lanc. Seneschallum Angliae à praefato Thoma si ipse dictum praefatum Communibus tradidit 5 H. 4. The Earl of Northumberland was brought to his Trial on Wednesday Then the Commons were present but I do not find that they were present with the Lords between Wednesday and Friday when the Lords advised on the Earl's Petition This Record mentions not where the Assembly was Numb 7. H. 4. Quint. of his Reign After the Lords had Awarded Proclamation against the Earl of Northumberland and the Lord Bardolph to appear at a Day or Judgment to be given The Commons not being acquainted therewith they came and prayed the King they might
and Judges I have observed four manner of Accusations in Parliament 1. First by the Commons either by their Complaints or their Impeachments 2. Secondly by Information Ex. parte Dom. Regis 3. Thirdly by Complaint of private Persons 4. Fourthly by Appeal of some of the Lords in Parliament which was abolished p. Stat. 1. H. 4. c. 14. The Accusation of the Commons The manner of Accusation ought to be by the Commons alone and not by the Lords and them together for so Earls Prelates Barons and other Peers of the Land and Commons of the Realm did accuse Hugh de le Spencer 15 E. 2. and one of the Errors assigned for the Reversal was that the Lords had no Record before them of the Causes contained in their Award vis Rot. claus 15 E. 3. in the Parliament at York The Reasons may be because the Lords joyning in the Accusation with the Commons have declared their opinion of the Fact and there needs no further Tryal thereof Wherefore the Lords who are only Judges may neither accuse any to themselves nor joyn in the Accusations with others The complaint of the Commons is either by Petition or demand in general or by Impeachment in particular which is their Declaration against the party accused Precedents of their Complaints by Petition are Anno 21 E. 3. n. 38. The Commons complain of Extortion used by certain Merchants who were Farmers of the Kings Customs of Wools not naming the Parties for which they pray remedy and that the said Merchants may be put to their answer in this Parliament for such outrage and distress done to the people Which Petition is thus answered Let the Merchants be called into the Parliament Et oient lour Respons In codem Parl. n. 49. The Commons in another Petition complain That whereas diverse aids have been granted to the King for his Wars certain Merchants by confederacy between them and in manner of usury have bargained for the same to the Kings great loss and the grievance of the Commons c. His people pray these Particulars may be examined in presence of some by the said Commons deputed by good wise and Loyal men during the Parliament The King shall assign some of the Sages of his Council to hear and determine the things contained in this Article And if any of the Commons can inform the King for his profit of any of the Points herein contained let him put it in certain and he shall be heard to the end that Right and reason may be done And the Justices which shall be assigned to enquire of false Mony shall have power to enquire of the excess of such Ministers Though these complaints were general yet they pointed so directly to the Parties accused that John de Worsenham and Walter de Chairton did exhibit their Petitions also in their own defence desiring to come to their Answers What further proceedings were herein is not recorded The Commons were directed to impeach the Parties whom they accused If any of the Commons can inform c. Let him inform in certain and he shall be heard c. So that although the Commons accusation by complaint be general yet if the complaint be received and the Parties brought to answer the Commons may then impeach the said Parties viz. declare against them in special and then the Suit is theirs prout Anno 50 E. 3. against Lyons Ellis the Lord Latimer the Lord Nevile Peecher and others But if the Commons do only accuse by any way of complaint whatsoever and do not declare in special against the Party accused then the Suit is the Kings and the Party is to be arraigned or otherwise proceeded against by commandment Ex parte Dom. Regis prout Gomeniz Weston and Alice Peirce 1 R. 2. Anno 1 H. 4. The Commons pray the Lords Apellants in the 21 R. 2. may be put to their answer and so they were 10 Placit Coron of that Parl. n. 1. 2. 3. c. Anno 29 H. 6. The Commons pray that the Duke of Somerset the Dutchess of Suffolk the Bishop of London and many others may be abandoned from the Kings Presence during their lives and not come within twelve Miles of the Court for that the people spoke evil of them The King of his own meer motion is contented that all shall depart unless they be Lords and a few of them whom he may not spare from his presence and so to continue one year to see if any man can misprove them n. 6. inter Petitiones Communium For this was no Accusation for the Commons did not require they might be banished the Court. Anno 38 H. 6. The Commons among their Petitions accuse the Lord Stanley of sundry Particulars as to be of confederacy with the Duke of York and pray he may be committed to Prison The King will be advised Primo Jac. 26 Maii. The Commons by message accuse the Bishop of London for words spoken of them in the upper House Of the other kind of complaint by way of demand I have seen these two Precedents only Anno 1 R. 2. The Subsidy to be treated upon between the Lords and Commons as the manner then was The Commons delivered to the Lords a Schedule of their demands to be dispatched before Treaty should proceed Amongst which one was That all such who without Cause have lost or given up any Castle Town or Fortress to the dishonour of the King and damage of the People may be put to their Answer before the Lords and Commons in this present Parliament The Complaint herein is general They accuse such as had delivered up Castles c. if it be an Accusation But they name not the Parties yet two Delinquents hereupon who were Imprisoned in the Tower for delivery of Castels c. were put to their Answer viz. Gomeniz and Weston Anno 7 R. 2. The Commons grant a Subsidy according to the Tenor of a Schedule indented delivered in Parliament requiring it may be enrolled in the Parliament Roll verbatim in which Schedule is this Protestation That it is not their meaning to grant the said Subsidy without the Conditions ensuing Inprimis That the Clergy make the like Grant Item That the Bishop of Norwich and others be compelled to answer such Sums as they have received for Service by them undertaken and not performed c. Numb 13. Here the Commons name one of the Parties against whom they complain but they impeach him not and yet he and divers others were censured on that general demand Of the Impeachments of the Commons there be these Precedents Anno 50. E. 3. The Commons having granted the Subsidy they protested their good will and firm purpose to aid the King and said That it seemed to them for truth that if the King had always about him Loyal Subjects good Councellors and faithful Officers he had been rich in Treasure and needed not have charged his Commons with Subsidies
that whereas he being Chancellor was bound by Oath to further the King's Profit and Commodity in all things He notwithstanding contrary to the said Oath and not regarding the King 's great necessity had purchased of the King Lands and Tenements to a great value procuring the same by reason of his Office to be Surveyed at an under value 2. Item Whereas at the last Parliament nine Lords were appointed to see and examin the State of the King and Realm which being done and their Advice delivered to the King as well by word as writing by what means the same might best be remedied The Chancellor promised in open Parliament that the same should be put in Execution which was not done through his default he being a Principal Officer 3. Item Whereas the Subsidy granted the last Parliament was appointed by the assent of the King and Lords in what sort it should be expended and not other ways employed in this was his default he being Principal Officer 4. Item Whereas John Tidman had a certain Annuity from E. 3. which he had since forfeited and the payment thereof was discontinued for the space of 20 or 30 years The said Chancellor knowing this purchased his Interest and procured the King to confirm the same unto him c. 5. Item That whereas the great Master of St. Antony being a Schismatic had thereby forfeited to the King all his Revenue within this Realm the same Chancellor had taken the same to Farm of the King for 20 Marks And whereas the Master should have livery thereof again he could in no wise get the same until he had bound himself to pay 100 l. yearly to the Chancellor and his Son 6. Item That during the time of his Chancellorship there had passed divers Charters of Pardon as well for Murders Treasons and Felonies as also for rasing of Rolls and imbezelling of Laws and Records and especially since the beginning of this Parliament a Charter of Franchises was granted to the Castle of Dover to the disinheritance of the Crown and to the Subversion of all the Places and Courts of the King and his Laws 7. Item That at the last Parliament divers Sums were allotted for the defence of the Town of Gant notwithstanding the same Money was lost c. by his default c. Of all which Articles the Commons demand Judgment of the Parliament c. I have been long upon this considering all the Precedents follow at large These are the most formally set down of all the Accusations hitherto of the Commons yet most of these are very general and uncertain Howbeit the Chancellor took no exceptions to the insufficiency thereof but answered to every particular The next Accusation of the Commons is 11 R. 2. in the 21. of the King they accused divers of those whom the Lords had first appealed whereof when we speak of all Appeals Anno 21 R. 2. the Commons accused and impeached of Treason the Archbishop of Canterbury Numb 15. and demanded Judgment against him and had it Numb 16. Eodem Parl. The Commons accused and impeached of Treason Tho. Mortymer and John de Cobham a Baron of Parliament and had Judgment against them both Anno 28 H. 6. William de la Pool Earl Marshal and Duke of Suffolk was accused and impeached by the Commons in manner following viz. The Duke being the great Favorite of the King and Queen the common People laid all the fault of the evil Government on him and made Ballads thereof which I have seen taxing his Loyalty to the King The Parliament of 28 H. 6. begun the 6th of November and held to the 6th of December and was then Prorogued to the 22th of January The Duke of Suffolk whether provoked by the Ballads then made on him or by some Speech in the House of Commons whereof nothing is recorded did require of the King that he might be specially accused and be heard to answer for that many reported him to be an untrue man and he made a solemn Protestation of his Loyalty wherein he sheweth that his Father and three of his Brethren died in the Service of the King and of his Father and Grandfather That he himself had served 34 years in the Wars being then but a Knight That he had been taken Prisoner and paid 20000 Marks for his Ransom That he had been 30 years of the Order of the Garter Chancellor to the King 15 years and had been 17 years in the King's Wars without returning home And he prayed God so to pardon him as he had been true to the King and required his Purgation Numb 14 15. Whether this was sent to the Commons or what notice they had of it appears not but on the 2th of January the Commons required the Duke might be committed to Ward for his own Confession for that as I concieve he himself confessed That the general Fame went of him And the Lords on Consultation of the Justices thought the same to be no good Cause of Commitment unless some special Matters were objected against him Numb 16. On the 28th of January the Speaker declared to the Lords how the Duke of Suffolk as it was said had sold this Realm to the French who prepared to come hither And that the said Duke for his own defence had furnished Wallingford Castle with all Warlike Munition And then on request the Duke was committed to the Tower On the 7th of February the Chancellor and some other Lords were sent by the King to the Commons a thing not usual but wherefore they were sent is not expressed happily to be informed what they could say against the Duke or to reconcile the business But the Commons delivered to this Chancellor and those other Lords a Bill of Articles against the Duke wherein they accused him of divers Treasons viz. For intending to marry his Son to the Heir of the Duke of Somerset and thereby for want of Issue of the King to claim the Crown For practising with the French c. Numb 18 19. and they require Prosecution against him Numb 17. March 19. The Commons delivered another Bill of less Offences against him Numb 28 29 30 c. requiring those Articles also to be inrolled and the Duke put to his answer These before recited are all the ancient Precedents I find recorded the following are of later times Anno 1 Jac. The Commons accused and impeached by word of Mouth Sir Giles Mompesson and Sir Fr. Michell Knights for many Oppressions done to the People They impeached them to the Lords at a Conference and afterwards delivered their Declaration against them First Concerning a Patent for Inns and Osteries Secondly A Monopoly for Gold and Silver Thread Thirdly Concerning a Patent of Concealments Eodem Parl. They accused Francis Lord Viscount St. Alban at a Conference of Bribery and Corruption in his Office of Chancellor They delivered no Writing but a Committee of the Lords having considered the Proofs and drawn up
were also recorded and read in Parliament Numb 17. 18 19 20. but the Information exhibited against him whereupon he was arraigned is not recorded It is only said He was arraigned Ex parte Domini Regis §. 3. Here might be two Questions First Whether was this Sir Ra. Ferrers legally brought to his Answer in Parliament by the commandment of the Duke of Lancaster and those other Lords who were then with him in the Marches of Scotland Secondly Whether he being no Baron or Lord of Parliament for he never had Summons might be legally arraigned in Parliament for life and death upon an Information Ex parte Dom. Regis which is contrary to the Law as was resolved in Parliament 4 E. 3. Numb 2. and 6. For resolutions of these doubts I am of opinion that the Duke of Lancaster might send Sir Ra. Ferrers to the Parliament because it was then sitting and might examine the Treason whereof he was suspected though they could not proceed to Judgment against him without the Commons he being a Commoner and not their Peer And it fell out in the Examination of this business they found the Letters to be counterfeited and so he was acquitted thereof And so far their proceeding was not illegal For the Parliament may entertain and examine any Cause and then direct the Judgment thereof to its own proper Court if it belong not unto them as they did in 5 R. 2. Numb 43. 44. Here Sir William Cogan Knight being accused by Sir Richard Clurdon of matter sounding to Treason After the Lords had heard the Cause they remitted both the parties to the Common-Law And in this Case of Sir Ra. Ferrers if they had found he had been guilty they might have proceeded to Judgment against him according to the Precedent of Sir Tho. Mortimer in 2 H. 4. who was indicted in London and the Indictment returned into the Chancery and thence brought into the Parliament where the Commons affirmed the same and prayed Judgment against him Anno 2 H. 4. The Lords Temporal gave Judgment on one Tho. Holland Earl of Kent John Holland late Earl of Huntington John Mountague late Earl of Salisbury the late Lord de Spencer and Ralph Lumley who were beheaded in a War they had Trayterously raised against the King This Judgment is entred but not the Information Ex parte Dom. Regis which is necessary to be understood for had it been omitted his Son Thomas would without doubt have assigned that for one of the errors in his Petition to reverse the said Judgment 2 H. 5. apud Leicester which he did not though he assigned for an Error That his Father was put to death without an accusation In the Parliament begun at Westminster Feb. 6. 1 Car. 1. and continued until June 25. Anno 2. ejusdem Regis John Earl of Bristol was charged with High Treason in this manner viz. Primo die Maii. The said Earl of Bristol being brought to the Bar and kneeling till the Lord Keeper wished him to stand up The Lord Keeper told him he was sent for to hear his Charge of High Treason And Mr. Attorney General being at the Clerks Table began to open his Charge but being interrupted by the said Earl who with much importunity exhibited Articles against the Duke of Buckingham then present which as he said he conceived to be Treason and required of the Lords that his Testimony against the Duke and the Lord Conway against whom he then also delivered Articles might not be made invalid no more then the Charge against himself which he affirmes was procured by the said Duke yet notwithstanding the head of the Kings Charge were opened against him by Mr. Attorney and then the said Articles against the said Duke and against the Lord Conway were read And it was ordered by the Lords of the Parliament that the Kings Charge against the said Earl should be first heard and afterwards the Earls Charge against the Duke c. But yet so as the Earls Testimony against the said Duke be not prevented prejudiced hindred or impeached Secundo die Maii. The House was moved that the Earl of Buckingham might be indicted according to the Stat. of 35 H. 8. the Treasons committed being beyond the Seas as was objected and that being certified to both Houses they to proceed against him by Tryal of Peers But their Lordships did not resolve on the manner of proceeding Then the Houses were moved that Mr. Attorney might provide an Indictment against the said Earl to be returned to the House on Saturday next Maii 6. And if he doubt of the Form to confer thereof with the Judges And if any great difficulty appear to resort to their Lordships and acquaint them with it And it was ordered that Mr. Attorney proceed with the preparation but the Houses not to be concluded at their next meeting on Thursday And the Sub-Committee for Priviledges c. to search for Precedents in the mean time Die Jovis Maii 4. The Sub-Committee for Priviledges reported one onely President viz. the Tryal of the Earl of Northumberland 5 H. 4. which the Clark read unto them out of the Parliament Roll of that year Whereupon after long debate It was ordered first that Mr. Attorney prepare the heads of the Charge against the Earl of Bristol and to bring them in on Saturday next Secondly The Earl then to receive his Charge at the Bar. Thirdly That when the Earl hath heard his Charge the Lords will determine when he shall Answer But he is not to be inhibited if he will Answer presently Fourthly The Cause of the Earl of Bristol is to be retained wholly in this House After the Earls Charge is brought in and his Answer then their Lordships to proceed to hear Mr. Attornies proofs amongst themselves and then to put the Cause into a way of Proceeding in this House Die Sabati Maii 6. The Lord Keeper shewed how Mr. Atturney desired that in regard the House hath already heard the nature of the crimes objected against the said Earl of Bristol That the Clark of the Crown in the Kings Bench may attend the reading of the Charge here according to a Precedent of former times which was denyed in regard the Clark of the Crown in the Kings bench is no Minister of this Court And also for that it was ordered May 4. that this Cause was wholly to be retained within this House The said Order being read the Earl was brought to the Bar and the Lord Keeper commanded Mr. Attorney to read the Charge against him who read the same out of a Parchment ingrossed in Court-hand and signed by himself Ro. Heath It containeth diverse Articles of High Treason and other great Enormities Crimes Offences and contempts committed by the said Earl c. prout postea Thus much touching the Charge against the said Earl by Information in the Kings behalf A Question was demanded of me and others in private the last Parliament
have cognizance what was done touching the said Rebellions of Salop and elsewhere-within the Realm whereupon New Proclamations were made and the subsequent proceedings were done in full Parliament in presence of the Commons and the Record saith upon the Request of the Commons A Question hath been often asked Whether the Commons did heretofore sit at Conference with the Lords Which I cannot very well resolve but verily believe That at all these Arraignments the Commons did sit with the Lords 10 R. 2. Gomeniz and Weston were brought before the Lords and Commons sitting in the White Chamber The Words are Devant les Seignieurs avant dits en plein Parlement c. But the Commons are here intended by the Words en plein Parlement And so was the Commons Demand that they may be tried before the Lords No other Records speak whether they did sit or stand In Judgments on Misdemeanors The Presence of the Commons is not necessary unless they impeach a Delinquent prout 50 E. 3. And then they were present at all the Answers of those whom they Impeached and demanded Judgment And when the Lords had rendred their Judgment against the Lord Latimer to be prisoner with the Marshal and to make Fine and Ransom to the King the Commons prayed the King he might also be put out of all his Offices and especially from being Privy Councellor Which the King granted And when the Lords had determined one part of the Complaint of the Commons against William Ellis touching a wrong done to certain Scottish Merchants the Commons prayed a general Enquiry might be made of the Residue whereof they complained which the Lords granted And when the Lord Nevil Answered They required that one Richard Love might be examined to prove that which the said Lord denied and they departed but two of the Commons remained and heard the Examination and told the Lords That the said Richard had related it to the Commons otherwise the day before which the said Richard denied Then all the Commons came and justified it again and thereupon the said Richard Love confessed it and on their Demands was committed This shews what Interest they have in their own Impeachments So in 10 R. 2. When the Commons had Impeached the Lord Chancellor They were present at his Answer and so often Replied and enforced his Oath against him and required him to be Committed and so he was before Judgment but Bayled presently But if the Commons do only complain and do neither impeach the Party in Writing nor by word of Mouth in open House nor demand Trial to be in their Presence In these Cases it is in the Election of the Lords whether the Commons shall be present or not And therefore when they complained of Alice Peirce 10 R. 2. The Lords deferred her Trial until the Departure of the Parliament that is till the Commons had leave to depart And if the Commons presence be not necessary in such Cases where they complain much less is it wherein they complain not yet they have been present when they did not complain but that was upon an extraordinary Cause prout 7 R. 2. A Fishmonger exhibited his Complaint first to the Commons against the Lord Chancellor and afterwards to the Lords in Full Parliament in presence of the Commons But they were present no doubt at the Lord Chancellor's Request That he might clear himself in Publick of the Slander and so he did The Presence of the Judges In Cases Capital the Judges are to be present also otherwise it is not a Full Court but they have no Voyce And though there be divers Precedents that complain of the Prelates prout 21 R. 2. 2 H. 5. and this last of the Commons yet there is not one Precedent that finds fault with their Absence in these Cases for they are not tractare cum caeteris Magnatibus but cum caeteris de Concilio Here may be Objected that which Tresilian and other Judges answered to one of the King's Questions 11 R. 2. touching the Judgment of Michael de la Poole That the same Justices and Serjeants would not give the same Judgment because it seemeth to them that the same is irrevocable as erroneous to every part Vid. Print Stat. 21 R. 2. Tresilian was much mistaken as much as in the other Answers whereby he determined that to be Treason and so here he gave his Advice not his Consent And yet he saith he gave his Consent Read but a little further and you shall find in the very same place as followeth Which Questions and Answers as well before the King as before the Lords and Commons were read and perceived and it was demanded of all the States of Parliament how they thought of the Answer And they said They thought the Justices made and gave the Answers duly and lawfully as good and liege People of the King ought to do And in the same manner Sir Tho. of Shelton Learned in the Law and Will. Hawkford and Will. Beechley the King's Serjeants being demanded by the King of their Advice c. and my Lord Will. Thurning of the Common Pleas c. That the Declaration of Treason not declared belongeth to the Parliament And if he had been demanded he would have said in the same manner And in like manner my Lord William Rickill Justice of the Common Bench and after the coming of my Lord William Clopton Chief Justice he said thus Wherefore the said Answers be judged good and affirmed sufficient in the said Parliament Whereupon the King by the Assent of the Lords Spiritual and Temporal and the Procurators of the Clergy and the said Commons and by the Advice of the said Justices and Serjeants there being It was Awarded and Adjudged c. Here you see the Manner of the Judges Assent viz. their Advice only Nor shall you find their Assents to any Statute yet the Judges have ever used to be present at the Trials in Parliament upon Life and Death 5 H. 4. The King delivered the Earl of Northumberland's Petition to them And at the Trial of any Peer out of Parliament the Judges are ever present on that Day and their presence is necessary for their Counsel to the Lords but their Assent is not necessary to the Judgment §. The Manner how the Lords resolve on their Judgment How this was Anciently appears in the Appeals 21 R. 2. Touching the Death of Simon Burley viz. It was demanded of every Lord who was present at the said Parliament his Advice of the said Simon touching his Crime Eodem Anno in the Print Stat. 21 R. 2. The Judges Opinions were demanded in the same manner beginning with the Serjeants c. and so ascending to the Chief Justice And at this Day the Question is put by the Chancellor or Lord Keeper and the puisne Baron answers first Content or not Content and so the Lords in Order But their Lordships do first debate the Judgment amongst themselves and the
Question is out of that which seemeth to be most generally agreed on In the Judgment it self is to be considered First Whether it be ultra Legem Secondly By whom to be Demanded Thirdly By whom to be Rendred Touching the First Judgments in Parliament for Death have been strictly guided per Legem Terrae otherwise they would not have judged the Earl of Kent the King 's own Unkle to be Hanged Drawn and Beheaded might it be left to their Discretion Vide Literas E. 3. to the Pope speaking of this Earls Judgment by the Parliament for Treason Cui Sententiae subductis tamen quibusdam opprobriosis in detestatione tanti Sceleris de Rigore Legis nostri Regni infligenda erat Dolentes acquievimus 4 E. 6. But the Roll is lost The Lords judged Mortimer to be Drawn and Hanged as a Traytor 4 E. 3. Simile pro Simone de Bereford N. 2. Ibidem Numb 3. They judged John Matrevers to be Drawn Hanged and Beheaded 10 R. 2. Weston adjudged a Traytor for delivering up of Castles Forts c. And so Jo. Lord Gomeniz a German was adjudged to die but because he was an Alien and a Baronet and was not the King's Liege-man he should be Beheaded That being the Death used in Germany to Gentlemen 10 R. 2. Simon de Burley the Earl of Arundel and others were Adjudged to be Hang'd Drawn and Beheaded for Treason They differ something yet herein they agree That the opprobrious Death of a Traytor is to be Drawn and Hang'd which the Parliament could not alter no not in their Judgments against the King 's own Unkle It was per Legem Regni infligenda The King might pardon all and usually did except Beheading of the Nobility of his own Blood and of later Times to all Noblemen As the Parliament could not dispence with nor omit any part of the Judgment on Traytors so they could not add more than the Law required And this may appear by their Judgments of Forfeitures of the Parties Estate The Parliament 4 E. 3. spoke nothing what Mortimer should forfeit to the King He well knew the Law could give the King all his Lands in Possession Reversion or Service Vide The Restitution of 28 E. 3. Numb 10. The Ordinances in 50 E. 3. Numb 45. against Women which shall make suit c. to the King against Alice Peirce by Name is Upon pain of as much as she can forfeit and to be banished But had it not been for the former Ordinance the Lords would not have given any such Judgment against her Her Offence being only for procuring Favour to her Friends from the late King contrary to a former Order of Council 11 21 R. 2. The Lords Adjudged the Forfeitures to the King of some Convicted on the Appeals greater than the Law will give but they passed Special Acts in each Parliament to Confirm both the Judgments and Forfeitures 1 H. 4. The Lords Adjudged and Declared the Earls of Kent Salisbury and others to be Traytors and to Forfeit Numb 30. as the Law of the Land willeth 7 H. 4. They Adjudged the Earl of Northumberland and Lord Bardolph to Forfeit for Treason all their Lands in their own Demesne or where others were seized to their Use. And so in Fines and Amerciaments the Judgments anciently were indefinite prout 42 E. 3. Numb 26. John at Lee is Committed to the Tower there to remain till he hath paid Fine and Ransom to the King and at the King's will and pleasure 50 E. 3. He is Awarded to Prison at the King's Will and to be put to his Fine and Ransom according to the quality of his Trespass who being brought before the Lords they told him his ill Deeds were so great that he had not wherewith to make satisfaction and he submitted to the King's Grace and the Lords Awarded all his Goods to be seized and his Body to be in Prison at the King 's Will. Eodem Anno The Lord Latimer to make Fine and Ransom at the King's Will Numb 28. Item William Ellis the like Num. 28. John Peecher the like Num. 33. Cavendish Awarded 7 R. 2. to pay Dammages to the Chancellor and to remain in Prison until c. and the King de Fine suo competenti sibi inde debito but not set down how much to the King These Fines were not put in certain for that the Law limits them to the King's Will But not doubt but after the Judgment the Lords did rate them as may be gathered out of Richard Lyons where after Judgment they called him before them to consider it seems at what Rate to Tax the same And they found it not sufficient And in Ancient court-Court-Barons the Amerciaments were ever offered after the Presentments In the Star-Chamber all Fines were usually mitigated after the Censure and that Court had Antiqua Vestigia Magni Consilii I hold that anciently the Fines were often Rated or Taxed And if the Lords may mitigate a Fine à Majore they may Tax it after the Judgment the Certainty not being then specified Judgments for Satisfaction In Complaints of Extortion and Oppression the Lords Awarded Satisfaction to the Parties wronged which sometimes was certain sometimes general but always secundum non ultra Legem 42 E. 3. Numb 18. Full Restitution was made unto William Latimer of the Wardship and Marriage of the Heir of Sir R. Latimer whereof he was outed by Duress by John at Lee. But this was done by a great Councel per Commandment du Roy after the Judgment William Ellis 50 E. 3. Awarded to pay to Botheil and Cooper 20 l. apiece for their Damages Num. 25. John Peecher Num. 23. Awarded que il face yeulx a les parties Compl. de lui pour les extortions issint prizes Jo. Nevile Num. 34. is Awarded to make Restitution to the Lady Ravensholme in Certainty for an Oppression done to her whereof the Commons complained 7 R. 2. The Parliament referred the base Accusation of Cavendish against the Lord Chancellor to be heard and determined by the Justices in such sort as if the Parliament had determined the same And the Justices adjudged him convict of Slander and that the Lord Chancellor should recover his Damages which they Taxed at 1000 Marks and that he be imprisoned until he had satisfied the Chancellor and the King pro Fine competenti sibi inde debito The Iudgment against Alice Peirce Anno 10 R. 2. was That if she had purchased any Lands by Force or Duress soit il pur Fine or Deed en pais or Deed enrolled or otherwise that her Purchase be held for none and the parties who hold themselves aggriev'd have their Process against her in Chancery By Advice of the Grand Councel Let Right be done to the Parties and Restitution made according as the Case requireth so as the Purchase made bona fide be not undone or annulled any way References to the Common Law Nor could the Lords judge any Complaint of